Pressure mounts to overturn prisoner voting ban

The Government is facing mounting pressure to overturn the prisoner voting ban. Laura Walters reports on the Waitangi Tribunal’s latest recommendations.

The Waitangi Tribunal has added weight to a growing number of voices calling on the Government to give all prisoners the vote.

On Monday morning, the tribunal issued an urgent report following its hearings into claims the ban on prisoner voting breaches Te Tiriti o Waitangi.

The tribunal found the ban, which results in a significant prejudice to Māori who make up 51 percent of the prison population, was inconsistent with the principles of Te Tiriti. Specifically, it breaches the principles of its active duty of protection and equity, and the principle of partnership. 

In the report, the tribunal recommends the Electoral Act 1993 be urgently amended to remove the clause that currently stops prisoners from voting.

The law was amended in 2010, extending the ban to all sentenced prisoners. Previously only those with a sentence of longer than three years (the parliamentary term) were banned from voting.

The tribunal has called on the Government to immediately start a process to enable and encourage all sentenced prisoners and released prisoners to be enrolled in time for next year’s general election.

It also recommends a new process to ensure Crown officials provided properly informed advice on the likely impact any bill, including members’ bills, would have on the Crown’s Treaty of Waitangi obligations.

“It is trite and obvious that the right to vote is a fundamental right in a modern democracy.

“That right is not to be hampered or diminished except where it is absolutely necessary because of something in the nature of an emergency. It becomes more serious when the restriction or removal falls disproportionately upon a particular group."

Under the current law, enacted in 2010, all sentenced prisoners are removed from the electoral roll and unable to vote. This has seen thousands of people removed from the electoral roll, many of whom did not re-enrol upon release, which also impacted the person’s whānau and wider community.

“It is trite and obvious that the right to vote is a fundamental right in a modern democracy,” the tribunal said.

“That right is not to be hampered or diminished except where it is absolutely necessary because of something in the nature of an emergency. It becomes more serious when the restriction or removal falls disproportionately upon a particular group.

“The wrong is exponentially increased when that group has a Treaty with the Crown that guarantees that a circumstance of this type will not happen. That is the basic finding of this report.”

'Popularity but no purpose'

The inquiry into the ban found the 2010 bill had “popularity but no purpose”. The question of what the legislation was intended to practically achieve was never addressed, and it was progressed without the Treaty implications being examined, or Māori consulted.

While the Attorney-General did advise the ban would be inconsistent with the Bill of Rights Act, and experts said blanket prisoner disenfranchisement would disproportionately affect Māori, there was no consideration of Treaty implications.

It was also a breach of the Corrections Act, which states the purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by (among other things) assisting in the rehabilitation of offenders and their reintegration into the community.

The tribunal's calls to do away with the prisoner voting ban follows similar efforts by others.

The tribunal's report was addressed to Māori Development Minister Nanaia Mahuta, as well as Justice Minister Andrew Little and Corrections Minister Kelvin Davis. Photo: Lynn Grieveson

In November, the Supreme Court ruled the High Court was acting within its powers when it declared the legislation a breach of New Zealand's human rights laws. The Supreme Court said courts have the power to make a statement of declaration when laws are inconsistent with the Bill of Rights Act.

This landmark ruling followed a lengthy legal battle brought by then-jailhouse lawyer Arthur Taylor who, in 2013, took the Government to the High Court in a fight to get prisoners the vote. In 2015, the High Court made the “declaration of inconsistency”.

This was the first time a court had made a declaration of this type. And while it did not change the law, it could be used in support of future arguments over the amendment of the law.

It also sent a message to Parliament that the law it passed was indefensible as it limited individual rights without reasonable justification.

Just weeks after the Supreme Court’s ruling, the Justice Select Committee’s inquiry into the 2017 general election and the 2016 local election discussed the ban, with some submitters calling for the ban to be lifted.

Penal reform organisation the Howard League has been a strong campaigner for repealing that clause of the legislation, and Green Party MP Golriz Ghahraman has submitted a private member’s bill, which includes overturning the prisoner voting ban.

In November, Newsroom asked Justice Minister Andrew Little whether he planned to overturn the ban. He said it was not a priority, and it would not be part of the package of electoral law changes he planned to make in time for the 2020 election.

On Monday, Little said the report made a "compelling case" about the impact the law change had on Māori prisoners.

"With the benefit of this report and the Supreme Court decision [last year], we will now consider the issues, advise Cabinet and determine a response."

The tribunal noted a change in the Crown’s position during the inquiry process.

The Crown accepted it had a duty to actively protect Māori political participation, and accepted while the 2010 law change was intended to create a temporary suspension of the right to vote, the evidence indicated the change actually operated as a de facto permanent disqualification due to low rates of re-enrolment upon release.

It did not dispute the importance and significance of Māori political participation or the disproportionate impact on Māori.

However, the Crown claimed it maintained the right to make laws and policies for the good governance of the country, and submitted that temporarily excluding people from voting when they had “offended against societal norms” remained a legitimate exercise of kāwanatanga, or governance.

The tribunal’s report comes hot on the heels of three separate reports that all paint a damning picture of the criminal justice system.

The hui Māori report - part of the Government’s wider justice reform programme - calls for total reform of the criminal justice system, led by Māori.

Help us create a sustainable future for independent local journalism

As New Zealand moves from crisis to recovery mode the need to support local industry has been brought into sharp relief.

As our journalists work to ask the hard questions about our recovery, we also look to you, our readers for support. Reader donations are critical to what we do. If you can help us, please click the button to ensure we can continue to provide quality independent journalism you can trust.

With thanks to our partners